LEGAL ADVISER BELLINGER'S MEETING WITH BELGIAN

C O N F I D E N T I A L BRUSSELS 000772

SIPDIS

NOFORN
SIPDIS

FOR DOD:JIM HAYNES; NSC:RICHARD KLINGLER; DOJ:STEVE
BRADBURY AND KEN WAINSTEIN; DNI:BEN POWELL; CIA:JOHN RIZZO

E.O. 12958: DECL: 03/08/2017
TAGS: PREL PTER BE
SUBJECT: LEGAL ADVISER BELLINGER'S MEETING WITH BELGIAN
OFFICIALS

Classified By: POLCOUNS TED ANDREWS. REASONS 1.4 (B) AND (D).


1. (C) SUMMARY: Legal Adviser John Bellinger met with
representatives of Belgium's Ministry of Justice and Foreign
Ministry to discuss legal issues arising from the global
fight against terrorism and ways to further transatlantic
cooperation and partnership against terrorism. Bellinger
reiterated U.S. commitment to rule of law, while noting the
difficulties of applying traditional rules to non-state
actors such as al Qaeda. He also briefed the Belgians on
provisions of the 2006 Military Commissions Act. END
SUMMARY.


2. (C) Legal Adviser John Bellinger and L/PM Assistant Legal
Adviser Joshua Dorosin, accompanied by Embassy Charge'
William Imbrie, ECONCouns Terri Robl, and poloff, met with
representatives from Belgium's Ministry of Foreign Affairs
(MFA) and Justice Ministry. MFA participants included Deputy
Chief of Cabinet Walter Stevens, Director for International
Organizations and Human Rights Issues France Chainaye, and
representatives from the Legal Adviser's office. Diplomatic
Adviser Serge Wauthier, Deputy Legal Adviser Erik Verbert,
and Federal Magistrate Johan Delmulle represented the Justice
Ministry.


3. (C) Stevens opened the meeting by referencing Belgian
Foreign Minister De Gucht's October 30 letter to Secretary
Rice, which expressed concern about provisions and
implementation of the 2006 Military Commissions Act. In his
letter, De Gucht questioned the Act's provisions on judicial
recourse, and raised concerns about interrogation practices
and the law's effect on the application of principles under
the Geneva Conventions. Bellinger noted the legal framework
for dealing with the armed conflict with al Qaeda is not so
clear -- traditional legal categories do not fit a terrorist
organization such as al Qaeda very well. While the U.S.
respects and complies with the provisions of the Geneva
Conventions, such traditional international rules were
designed to apply to conflicts between states and do not
always easily apply to non-state actors like al Qaeda.
Stevens agreed the traditional "legal framework does not fit
al Qaeda," although he was uncomfortable with saying existing
laws were unclear. He wondered how the current framework of
international law could be adjusted so that allies could
"work commonly on a legal basis" to address terrorism.


4. (C) Bellinger indicated the United States is concerned
about a divide between the U.S. and Europe fueled by a
misconception in Europe -- perhaps media-driven -- that the
U.S. is not complying with international law. It is neither
productive nor fair to say the U.S. is choosing to break the
law; rather, the transatlantic partners should work together
to ascertain and apply the appropriate legal framework in
order to combat an enemy that does not fit traditional rules.
Bellinger stressed it is important that the United States
and Europe not grow apart on this issue. Noting his meeting
earlier that day with Anne-Marie Lizin, President of the
Belgian Senate, Bellinger indicated that a growing number of
Europeans appeared to recognize the Geneva Conventions may be
difficult to apply to new realities and were questioning
whether a "new Geneva Convention" was necessary. Bellinger
thought it was premature to discuss a new multilateral
convention, but reiterated that the lack of clarity created
by rules meant to apply to conflict between states and not
necessarily to non-state actors such as al Qaeda provided
impetus for cooperation in determining the appropriate legal
framework.


5. (C) Stevens argued that "terminology is important."
While the old rules may no longer apply to certain
situations, the United States and Europe are rule-based
societies that must cope with new situations based on a solid
legal foundation. "What are we doing to make sure we act on
a legal basis" if the Geneva Conventions are not always
applicable, Stevens asked. Bellinger responded that it is
not fair to say that the United States is violating clear,
legal norms. Legal experts differ on the interpretation and
implementation of laws of war. Rather, it is imperative that
allies work together to counter a global terrorist threat
from groups that the legal system has not traditionally
addressed.


6. (C) Stevens wondered what the main problems are in
developing common approaches to fighting terrorists. For
example, how are today's groups different from groups such as


the IRA? He noted that, in the case of the Madrid bombings,
judiciaries in several countries acted on the basis of
existing criminal laws, suggesting that use of a criminal
justice paradigm was effective in that case. Assistant Legal
Adviser Dorosin said there were two factors to consider in
determining how to respond to terrorist attacks. First, it
is important to recognize that every affected country
approaches the issue within the context of its own
international obligations and domestic authorities, and that
this would mean countries seeking to cooperate with one
another must realize that they may not always operate under
the same legal requirements. For example, European states
are generally parties to both the Additional Protocols to the
Geneva Conventions and to the European Convention on Human
Rights, two sets of obligations to which the U.S. is not
bound. Second, it should be clear after the September 11
attacks that terrorists now have a global capacity for
violence that may give rise in some cases to a legitimate
right of self-defense, so that armed conflict with a
non-state actor such as al Qaeda is now more likely to take
place. Both of these factors support the U.S. view that it
may be appropriate in some cases to respond to terrorist
groups like al Qaeda militarily and under a law of war
framework, and that European governments should not take the
view that such a response was always legally unsupportable.
Bellinger added the U.S. does not feel military action
governed by the law of armed conflict is necessarily the only
way to fight terrorism -- the U.S. wants to use all of its
tools to combat terrorists. But domestic criminal laws
cannot be routinely applied to actors such as al Qaeda, who
operate training camps and attack U.S. interests outside the
United States. In such cases, the laws of war are
applicable. However, a clearer international consensus on
what rules or tools to apply is necessary, and the U.S. wants
to work with its allies to achieve that consensus.


7. (C) Bellinger turned to the 2006 Military Commissions
Act, which he noted had been mischaracterized in both the
U.S. and European press. He explained the military
commissions were very similar to courts martial, with
military judges and all the elements of a fair trial.
Dorosin said there was consideration under way regarding
adding foreign consultants to an accused's defense team. He
discussed other protective measures, including the combatant
status review tribunal (CSRT) and CSRT review process.


8. (C) Stevens said Belgian FM DeGucht felt compelled to
write to Secretary Rice in October to appease domestic
concerns from the Belgian populace and parliamentarians.
Stevens found Bellinger's explanation of the "fairness
elements" for detention and trial of detainees helpful in
this regard. Bellinger expressed appreciation for domestic
political pressures, and noted the Military Commissions Act
was more complex than conveyed in the media. He offered U.S.
help in conveying accurate facts and information to Belgium
and other governments to appease their domestic
constituencies.


9. (C) Serge Wauthier asked about the use of coercive
interrogation techniques to gain evidence or confessions.
Bellinger said that evidence stemming from torture is
excluded and he explained that a judge must determine what is
coercive; there is no statutory ban on coercion. Coerced
statements will not be admitted unless a judge determines the
statement is reliable. Wauthier asked whether assurances
would be provided to governments that defendants' legal
rights would be respected. Bellinger said he understood the
political pressures that European governments faced, but they
should maintain calm about this subject. It was ridiculous
to think the United States, with its longstanding judicial
system, was disregarding the law. He said the U.S. Justice
Department could provide some assurances regarding compliance
with applicable laws, but the populace needed to be educated
regarding actual provisions within the Military Commissions
Act and the U.S. commitment to rules of law. Correcting
European misconceptions was a priority for U.S. leaders and
officials. Bellinger noted that the U.S. and Europe manage
to engage effectively, for example, on extraditions despite
differing views on the death penalty. The key was to avoid a
U.S.-European divide on a global issue as vital as the war
against terrorism.


10. (C) Stevens said the meeting had been very helpful and
thanked Bellinger for offering to answer other questions in
the future. He agreed with Charge' Imbrie that, in the

future, letters from the Minister were unnecessary, and that
experts would engage on a working level. Bellinger assured
the Belgians of U.S. desire to provide facts and information.



11. (C) The Belgians arrived with a number of tough questions
on Military Commissions, but by the end of the meeting
appeared to be fully satisfied with the complete and detailed
presentation by Bellinger and Dorosin, as well as
Bellinger,s analysis that inaccurate reporting by European
journalists had exacerbated European concerns about U.S.
approaches to dealing with illegal combatants.


IMBRIE
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